On Title IX: How Will The Recent Change Affect College Sports?

It’s pretty amazing just how long the battling’s been going on concerning Title IX, the federal law passed in 1972 that requires gender equity for boys and girls in every educational program that receives federal funding.

The push-and-pull has largely played out between two sides: groups who feel like the law needs to be enforced in such a way that women’s opportunities are maximized and other groups who feel like the application of the law, especially in the now lengthy wake of a 1993 First Circuit decision called Cohen v. Brown University, has taken an unnecessary toll on men’s sports at the college and university level.

The news today: the former side picked up a win on Tuesday, when the Department of Education announced that it was rescinding a rule allowing universities to use student surveys to comply with Title IX.

Understanding why this is important involves a brief unpacking of the Cohen v. Brown decision, which set the legal standard for how colleges and universities can ensure they’re complying with the law. In that decision, the First Circuit ruled that schools could ensure compliance by either 1) making sure that intercollegiate athletic opportunities for male and female students are provided in numbers substantially proportionate to their respective full-time undergraduate enrollments; 2) showing a history which is “demonstrably responsive to developing interests and abilities” of women; 3) showing that the interests and abilities of women have been “fully and effectively accomodated” by the school’s athletic program.

Over the years, most of the battling turned on the first prong — the so-called “proportionality” prong. A school had to show, in other words, that if its undergraduate student body were made up of 54% women, then 54% of its intercollegiate athletes also had to be women.

Use of the proportionality test led to huge gains in participation for women. But in many instances, schools cut men’s programs in order to comply. Some of the sports often cut: wrestling, men’s track and field, men’s swimming, and baseball.

But a 2005 tweak made by the Office of Civil Rights allowed schools to show compliance with the third prong of the Cohen v. Brown test by presenting surveys of student’s interests. Some viewed this as a loophole, as explained by the New York Times, because the new regulation allowed schools to present a lack of response as lack of interest.

But to the groups who viewed life under the proportionality test as unfair to men’s sports, the surveys allowed schools to show that even if a school had more male athletes than females, it was still “fully and effectively” accomodating the interests of undergraduate women.

On Tuesday, the Office of Civil Rights eliminated the ability of schools to use the surveys in the ways they’d been used before. The move was announced by Vice President Joe Biden, who said: “Making Title IX as strong as possible is a no-brainer. What we’re doing here today will better ensure equal opportunity in athletics, and allowing women to realize their potential — so this nation can realize its potential.”

Some hailed the move. Nancy Hogshead-Makar, the senior director of advocacy at the Women’s Sports Foundation, told the NYT the announcement signaled that the administration was taking women’s participation in athletics seriously.

Others were disappointed. “Surveys can give the students a voice in the decision making process of sports sponsorship,” said Eric Pearson, the chair of the College Sports Council, a group that has for years fought against what it sees as the wrongheaded application of a good law. Added the group’s President, Leo Kocher: This means “more sports teams will be eliminated like at Duquesne University where 4 men’s teams were recently terminated.”

For other coverage of the OCR’s move, click here for Bloomberg’s report, and here for the AP’s report.

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